Almost every political figure who has been investigated by a federal prosecutor has made the argument that he is the victim of a vindictive prosecution.
Patel has gone a long way to supporting a claim of vindictiveness and helping defendants who might be charged to make their case.
Patel has already identified who needs to be prosecuted and what their crimes appear to be—all without the benefit of having conducted a criminal investigation.
It seems quite likely that many of those whom Patel wishes to prosecute will be protected from that prosecution by the courts.
Dismissal of any indictments brought may be some surcease, but it will be cold comfort indeed to those whom Patel and Trump target.
“Show me the man, and I’ll show you the crime,” is a quote that may be apocryphally attributed to LAVRENTY BERIA, the head of the Soviet secret police. That terrifying statement perfectly captures the essence of what is known as a vindictive prosecution under American law, which is the allegation that someone is being prosecuted in retaliation for actions unrelated to the crime for which they are charged.
In American jurisprudence, the statement is regularly made. Nearly every public figure who has been the subject of a federal prosecutor’s investigation has claimed that he is being attacked in retaliation. They typically contend that they are innocent of any actual crimes and that their political rivals are trying to harm them. However, nearly every argument of this kind fails because, up until now, the claims were essentially without any supporting evidence.
However, if Kash Patel is appointed director of the Federal Bureau of Investigation, as President Trump has recommended, he will be the epitome of vindictiveness. His notorious public statements of retaliation could result in the dismissal of any politically motivated prosecutions he starts against his enemies’ list of “Deep State” opponents.
According to the law, any suspicion of retaliation on the part of the government can be disproved by demonstrating that the charges in the indictment or the basis for the indictment itself are supported by a valid and impartial explanation. The vindictiveness claim was made by Trump himself during his recent legal battles. He failed (like the majority of defendants) because there were objectively valid reasons to believe that his charges were supported by strong evidence.
However, there is an additional twist to this general rule: if a defendant can demonstrate that the prosecutor was truly vindictive in his prosecution, he may still win even if there is no presumption of vindictiveness because the prosecution is objectively reasonable. In other words, even though there may have been actual crimes, a defendant can still prevail if they can provide concrete proof that the prosecution was motivated by retaliation. In the Beria scenario, locate the man first, and then determine the crime.
Patel has made significant progress in bolstering a vindictiveness claim and assisting defendants who may face charges in presenting their case. Take, for instance, this interview (especially at 1:07:00), in which Patel threatens to prosecute and file civil lawsuits against political rivals for “borderline treason.”. Or take a look at this video (around 4:58–5:30), in which Patel says he has already made up his mind to target members of the “Deep State” and the media, “whether it’s criminally or civilly, we’ll figure that out,” because he has decided (ostensibly without investigation) that such actions are required.
An enemies list of people Patel wishes to prosecute is included in his book Government Gangsters: The Deep State, the Truth, and the Battle for Our Democracy. Additionally, in a heated interview with Steve Bannon, Patel enumerates a number of names, referencing everyone on his list of enemies, before concluding that “these people need to go to prison.”. “.”.
This is not what an impartial investigator would say. Instead, they provide compelling circumstantial evidence of vindictive intent and glaring evidence of a propensity for prosecution. Patel has already determined which individuals should face legal action and what their alleged offenses are, all without the advantage of a criminal investigation.
Almost by itself, the motion to dismiss is written. Patel will demonstrate his intention to exact revenge directly from his own words. It appears highly likely that the courts will shield many of the people Patel wants to prosecute from doing so. Naturally, Patel would not initiate the retaliatory prosecutions as FBI director; rather, the U.S. S. . Judges should be able to connect the .s, but so should the Justice Department’s lawyers. ().
To be clear, those on Patel’s list of enemies stand to gain nothing from this. Being the focus of a federal investigation is a huge burden in terms of time, money, attention, and mental stress, not to mention the potential for harassment in public. The dismissal of any indictments may be a relief, but it will be a cold comfort to the people that Trump and Patel target.
However, based on this record, senators are faced with a difficult moral decision regarding Patel’s nomination: Do they allow Trump to get away with firing the FBI director he appointed only seven years ago, who still has three years left on his term, and replace him with someone whose goal is punishing his perceived enemies rather than upholding the law, or do they force Trump to nominate someone who doesn’t sound like an American Beria bent on Stalinesque vindictiveness?
